Should judges make law?

Not those judges, says a leading commentator. And not those laws

Judges should not develop the law, a leading commentator argues in this week’s Spectator. “Balancing competing public interests is the essence of democratic government and participatory politics,” he says. When judges decide “intensely political questions… this is effectively a form of non-consensual legislation”.

Perhaps I am being unfair. This commentator knows perfectly well that all senior judges make new law. How could it be otherwise? He could probably quote from memory the well-known passage from Lord Reid’s famous lecture, The Judge as Law Maker, published in 1972.

“There was a time when it was thought almost indecent to suggest that judges made law — they only declare it,” said Reid, who sat as a law lord from 1948 to 1975 and was widely regarded as the outstanding judge of his generation. “But we do not believe in fairy tales any more.”

I am still being unfair. This particular commentator was perfectly happy to develop the common law during his seven years as an appeal judge. It’s not all judicial law-making he objects to. It’s merely the work of one particular court that he says has “arrogated to itself the right to decide between competing public interests, and to determine what is necessary in a democratic society, irrespective of the views of democratic electorates”.

It’s a thesis that is elegantly put but, as I hope to demonstrate, ultimately shallow.